A Case for eDiscovery (Part 1)

A while back, we wrote about how companies are not in the habit of retaining and organizing their documents in a logical structure -- which, in turn, is driving up their legal costs. The article fueled a frenzy of feedback from companies in the eDiscovery business.
They wanted to offer information about their services, and we saw it as an opportunity to pick their brains about what goes into the process, the challenges facing the industry and where the future of eDiscovery will take us.

Case Central

CaseCentral, a company working out of San Francisco and New York City, is 15 years old and helps its clients -- mostly, corporations and general counsels within companies -- to process, analyze and present the data housed within an organization.
We spoke with their CMO, Steve d'Alencon, about the ins and outs of CaseCentral's services and solutions.
Following the industry's well-known model called the Electronic Discovery Reference Model (EDRM), CaseCentral mainly works on the right side of the model, implementing their company-specific Evidence Management Platform. The EMP is a multi-matter and multi-party platform, which they consider to be an integral part of the eDiscovery process, as it works to improve the quality and reduce the risk and cost associated with optimizing the eDiscovery supply chain.
CaseCentral usually becomes involved with a company after an event has triggered the need for information to be retained -- usually, as the result of litigation. Companies become involved in hundreds of lawsuits each year. Most of them are handled by different firms, using different software products -- many of them, if not all, incompatible and providing inconsistent processes. CaseCentral is the unifying body employed to sync all the data and processes as one entity.
There are four primary sources of information contributed by an organization to the eDiscovery process:
* People generating content inside or outside the organization
* Content: In all its different print and electronic forms, including email and IMs. It is all subject to search
* Technology: The types of software used to organize, analyze and archive the information generated
* Event-based impetus that instigated the discovery process, whether a lawsuit or compliance issue. The relevance of the documents depends upon the nature of the event that spearheaded the investigation.
With these factors, the process can become very untidy, inefficient and costly. CaseCentral's EMP allows for content, people and technology to be shared on the same platform, where all parties involved can collaborate. With such a platform, they can focus more on what d'Alencon calls "process analytics" as opposed to "data analytics". By analyzing the process, clients are able to keep better track of their budgets and time and check how their metrics compare to industry average costs. Using an Intranet dashboard display, customers have an overview of their metrics to help them stay on course.
CaseCentral says that their EMP is the only multi-matter, multi-party platform out there that is a SaaS model, which allows for an "instant on," scalability to the company's needs and accessibility to all who need access to it.
Having worked almost exclusively with law firms up until about five years ago, CaseCentral's average client nowadays is an outside counsel representing a company being served. CaseCentral, like other firms in the industry, can be held liable for their services, which makes their commitment to accuracy and delivery even more important.
D'Alencon suspects that in the next three to five years mid-size companies will begin to assert greater control over the eDiscovery process, whereas smaller companies will continue to defer control to outside counsel. Other future endeavors, as d'Alencon theorizes, include the changing perception among companies to see eDiscovery as a part of the overall process and not just an afterthought. In addition, he thinks that the EDRM model, which has largely been seen as a linear model, will begin to be employed as a continuous process, going from left to right and back again.
The prominence of eDiscovery among companies experiencing more litigation than we might have thought highlights the growing need for more process management vs. crisis management. However, as we find with the next company, the process often involves more than just organization of data, it starts with compliance.

Cataphora

Cataphora, another California-based software company, is more about evidence analytics, than it is about eDiscovery. It can't help but find itself using its analytics measurement to help companies collect and analyze data in times of legal issues. Cataphora gets involved with each case with which it assists. Privy to the attorney-client privilege, it works to follow the "e-breadcrumb" trail that companies create each day. Their software tracks documents' behavior and can search for emotive words that may indicate questionable or unusual behavior.
Elizabeth Charnock, CEO at Cataphora, spoke with us about the unique services Cataphora delivers to their clients. She views Cataphora as offering a holistic view on eDiscovery and compliance. While most companies implement protocols for compliance, they don't always have procedures for ensuring quality of the process, in which the information is monitored and analyzed. It's no secret that lawyers and IT may not be the best communicators, so when they handle different and separate pieces of the process (discovery and compliance, respectively), it becomes inefficient. Cataphora merges the processes to allow for greater collaboration and communication.
Using Discussion Building Technology, Cataphora works to reconstruct the bits of data into a single document. For instance, an email is sent, a reply is formulated, which produces an IM, then results in a calendar item. This chain of communication is counted as one incident. Having an understanding of the greater connection between the different types of e-communication can prevent or deter unusual behavior. Many times, emails are deleted in an attempt to conceal criminal behavior, but other evidence still exists.
Charnock thinks that the future of the industry will ultimately change how the search is done. As technology evolves and companies adapt, new sources of data -- including voicemails and unscripted documents, like word-of-mouth and rumors -- will be subject to search and discovery. In addition, she sees that the two spheres of compliance and discovery will begin to overlap. Charnock thinks that, as the industry moves forward, companies and their employees need to take the process more seriously and know that there are serious (often, legal) implications to the otherwise benign communications.

Don't Wait to Get Sued to Care About Content

These two companies highlight the various ways of how eDiscovery contributes to content management. There are many different ways one can use to filter, search and analyze data. When faced with legal action, content suddenly becomes very important. There are the aforementioned and other companies offering services that can be employed before they are required. As a result, legal incidents can be minimized.

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